UNITED STATES v. BROOKS (two cases), 169 F.2d 840

DOBIE, Circuit Judge. Welker Brooks and James Brooks, as Administrator of the Estate of Arthur Brooks, deceased, filed civil actions in the United States District Court for the Western District of North Carolina, against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq. The District Judge, sitting without a jury, entered judgments against the United States in favor of Welker Brooks and James Brooks, Administrator of the Estate of Arthur Brooks. The case is before us on the appeal of the United States from these judgments.

About 8 p. m. on February 17, 1945, Welker Brooks and Arthur Brooks, both enlisted men in the United States Army, were driving with their father, a civilian, in their private automobile on a public highway near Fayetteville, North Carolina. Both soldiers were on leave or furlough, engaged in their private concerns and not on any business connected with their military service. The Brooks automobile collided with an Army truck, operated by a civilian employee of the War Department, which was transporting the members of a Fort Bragg band to Fayetteville.

Arthur Brooks was killed and Welker Brooks was seriously injured as a result of the collision, which the District Judge held to be due to the negligence of the driver of the Army truck. The only question we are called upon to decide is whether Welker Brooks and James Brooks, as Administrator of the Estate of Arthur Brooks, deceased, have claims against the United States under the provisions of the Federal Tort Claims Act. We think the District Judge erred by answering this question in the affirmative. This problem of statutory

interpretation is close and difficult, due primarily to the inept draftsmanship on the part of Congress in failing to make clear and express provision as to soldiers in the United States Army. It seems crystal clear that the claims here in suit fall literally within the comprehensive words “any claim against the United States, for money only” used in § 410(

a) of the Act, without any specific limitation as to the classes of persons who have valid claims under the Act. This fact, however, is not in itself determinative of our problem. The proper approach, we think, was admirably stated by District Judge Ghesnut, in Jefferson v. United States, D.C., 77 F.Supp. 706, 711, 712: “It is a familiar rule of statutory construction that the merely literal reading of particular words in

an Act can be narrowed by construction where, from the whole subject matter of the particular Act and its setting in the whole governmental scheme, the court can see that the literal import of the phrase used is contrary to established policy and would not accord with the real intention of Congress in passing the Act, and for this purpose we may ‘look to the reason of the enactment and inquire into its antecedent history and give it effect in accordance with its design and purpose, sacrificing, if necessary, the literal meaning in order that the purpose may not fail.’ Takao Ozawa v.

United States, 260 U.S. 178, 43 S.Ct. 65, 67, 67 L.Ed. 199; United States v. Sweet, 245 U.S. 563, 38 S.Ct. 193, 62 L.Ed. 473; United States v. Arizona, 295 U.S. 174, 55 S.Ct. 666, 79 L.Ed. 1371.” Manifestly, the purpose of any important enactment of Congress is entitled to very great weight in determining the scope of the enactment. Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026.

The purpose of the Legislative Reorganization Act of 1946, 60 Stat. 812, of which the Federal Tort Claims Act is Title IV, is said to be: “To provide for increased efficiency in the legislative branch of the Government.” Congress, for many years, had been plagued with a veritable flood of private bills authorizing the payment of money for personal injuries or property damage caused by the tortious conduct of employees of the United States. These bills consumed an appreciable portion of Congressional time and energy.

And Congress, by its size and organization, was ill fitted to pass fairly upon these bills. § 131 of the Legislative Reorganization Act of 1946 specifically forbids the introduction of such private bills for claims falling' within the ambit of the Act. While private bills for the relief of civilians were indeed legion, exceedingly rare and very far between were such bills for the relief of men in the armed services.

In this connection, we may note the following explanatory statement at page 31, Report No. 1400, on S. 2177 (79th Cong., 2d sess.), which became the Legislative Reorganization Act of 1946: “With the expansion of governmental activities in recent years, it becomes especially important to grant to private individuals the right to sue the Government in respect to such torts as negligence in the operation of vehicles.” (Italics ours.) The soldier, upon enlistment, acquires a special and unique military status, quite different from any relation between the Federal Government and civilians. United States v.

Standard Oil Co. of California, 332 U.S. 301, 305, 67 S.Ct. 1604, 91 L.Ed. 2067; In re Morrissey, 137 U.S. 157, 159, 11 S.Ct. 57, 34 L.Ed. 644; In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636. The soldier is subject to military discipline even while at play, and his desertion is a serious crime, punishable at times by death. Rarely, if ever, is a soldier referred to by Congress as a “private individual.” Congress has established a complete and comprehensive administrative system of compensation to take care of the death of, or injuries to, servicemen.

Monthly pension payments for disabling injuries, pensions to the widow, children or dependent parents for the death of a serviceman, full pay during periods of incapacity, medical attention and hospitalization, life insurance at rates far below the rates of commercial companies, employment preferences, education — -all these and many other benefits are distinctly given to servicemen. Nor have the States been niggardly to veterans.

Certainly there is force in the suggestion that Congress thought this system of benefits took adequate care of soldiers and intended thereby to exclude soldiers from the right to sue the United States for personal injuries received in the service. In various statutes by which Congress has established this complete and comprehensive administrative system of compensation for damages resulting from the injury or death of a soldier, it has made no distinction between injuries received while a soldier was on furlough or leave, and injuries received while a soldier was on active duty.

If the injury or disease is incurred during the period of his military service, it is service-connected, and is compensable, even though not service-caused. The fact that payments were made by the United States on account of the death of Arthur L. Brooks, and the injuries of his brother Welker, shows the practice where the soldier is on leave. In cognate Congressional statutes, wherein the United States has waived its traditional immunity from suit for tort claims, these statutes have been judicially interpreted as inapplicable to members of the armed services.

Thus, the Public Vessels Act, 46 U.S.C.A. § 781 et seq., authorized: “a libel in personam * * * against the United States * * * for damages caused by a public vessel of the United States * * yet it was held that there was no claim against the United States for the death of naval officers. Speaking for a unanimous Court, Circuit Judge Swan, in Dobson v.

United States, 2 Cir., 27 F.2d 807, 808, 809, certiorari denied 278 U.S. 653, 49 S.Ct. 179, 73 L.Ed. 563, used this trenchant language: “Verbally, there is nothing which excludes liability for damage to property or person of officers or crew. * * * “Nevertheless the construction contended for by appellants involves so radical a departure from the government’s long-standing policy with respect to the personnel of its naval forces that we cannot believe the act should be given such a meaning. The statute itself does not specify who may maintain suits under it.

To allow suit by the officers and crew of the public vessel for damage caused by it to them would be too great a reversal of policy to be enacted by such general terms.

The Act of October 6, 1917, 40 Stat. 389, 34 U.S.C.A. §§ 981, 982, directs the Paymaster General of the Navy to reimburse officers, enlisted men, and others in the naval service who suffer loss or destruction of or damage to their personal property in the naval service “Chapter 3, Title 38, United States Code, 38 U.S.C.A. §§ 151-206, provides an elaborate pension system for personal injury and loss of life incurred by officers and enlisted men in the navy.

These pensions may be thought an inadequate substitute for the recovery of full damages under the Public Vessels Act of March 3, 1925, but they were well known to all who entered the naval service. * * * If it had been the purpose to change that policy as respects officers and seamen of the navy injured by the unseaworthiness of a public vessel, or by the fault of one another, because that is what in the end it comes to, we cannot think it would have been left to such general language as is to be found in the above-quoted

section 1. * * * “We believe that Congress meant to leave upon the members of the naval forces the same risks of injuries suffered in the service of the United States as they had before.” In Bradey v. United States, 2 Cir., 151 F.2d 742, 743, certiorari denied 326 U.S. 795, 66 S.Ct. 484, 90 L.Ed. 483, rehearing denied 328 U.S. 880, 66 S.Ct. 1348, 90 L. Ed. 1647, Circuit Judge Learned Hand stated: “It is quite true that nothing in the text of the Public Vessels Act bars suit by a member of the armed forces, but in Dobson v.

United States, 2 Cir., 27 F.2d 807, certiorari denied 278 U.S. 653, 49 S.Ct. 179, 73 L.Ed. 563, we held that, because of the compensation elsewhere provided for such persons, they must he deemed excluded from its protection. That case directly rules here-; and, to succeed, the libellant must prevail upon us to overrule it.

This she attempts to do on the ground that the course of judicial decision since then discloses a change of attitude towards such sufferers. “We can find no evidence of such a change, nor do we see any antecedent reason to think that we were wrong before.” See, also, The West Point, D.C., 71 F.Supp. 206, 212. In like manner, under the Railroad Control Act of 1918, 40 Stat. 451, when the Federal Government controlled the railroads, it was held that a soldier injured by the negligent operation of a railroad had no valid action against the United States. Sandoval v. Davis, D.C., 288 F. 56. See also, Dahn v.

Davis, 258 U.S. 421, 428, 42 S.Ct. 320, 66 L.Ed. 696. Appellees make much of the fact that the Act contains certain specific exceptions to the liability of the United States. From this it is argued that these expressed exceptions negative any other implied exceptions. Moore Ice Cream Co. v. Rose, 289 U.S. 373, 377, 53 S.Ct. 620, 77 L.Ed. 1265; Cunard Steamship Co. v. Mellon, 262 U.S. 100, 128, 43 S.Ct. 504, 67 L.Ed. 894, 27 A.L.R. 1306; Lapina v. Williams, 232 U.S. 78, 92, 34 S.Ct. 196, 58 L.Ed. 515. The maxim expressio unius est exclusio alterius is by no means a rule of statutory

interpretation to be universally applied. Special stress is laid by appellees on two of these express exceptions spelled out in the Act.

Section 421 (

j) of the Act excepts: “any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” See Skeels v. United States, D.C., 72 F.Supp.

Section 421 (

k) excepts claims “arising in a foreign country.” This argument of appellees would have greater force if these two exceptions were set out in terms of claimants. But such is not the case. The first exception is couched solely in terms of the nature of the activity giving rise to the claim (combatant activities in war time) regardless of the claimant. And the second exception is stated purely in terms of place (whoever may make the claim), the locus delicti, — “a foreign country.” This contention of appellees with respect to the exceptions in question, if sound, would lead to rather fanciful results.

Thus, under the first exception, a soldier killed or injured in the important and perilous combat activities of war would be denied a recovery; while there would be a perfect claim for the soldier killed or injured in non-combat activities. Under the second exception, for a soldier injured or killed while stationed in Canada, no recovery; for a soldier injured or killed at Plattsburg, New York; just a few miles from the Canadian border, again a recovery. It is difficult for us to think that Congress intended such results to flow from the Federal Tort Claims Act.

Judicial authority on the precise problem before us is very scant. As far as we know, no federal appellate court has decided this question. In Troyer v. United States, 79 F.Supp. 558, the action against the United States was dismissed by the United States District Court for the Western District of Missouri. The leading case seems to be Jefferson v. United States, decided by District Judge Chesnut in the United States District Court for the District of Maryland.

When this case first came before him, 74 F.Supp. 209, Judge Chesnut denied without prejudice the motion to dismiss; but when the case was before him for final disposition, 77 F.Supp. 706, the complaint was dismissed. See Hulen (U. S. District Judge), Suits on Tort Claims against the United States, 7 F.R.D. 689, 694, 695. There is a clear factual distinction between the Jefferson case and the case before us. There the injury was service-caused since the claim was based on the negligence of an army surgeon while performing a surgical operation on the soldier.

With us, the injuries were service-connected though not service-caused; for, at the -time of the accident, appellees were on furlough or leave, riding in their privately owned automobile. Counsel for appellees, relying heavily on this factual distinction between tlie two cases, contend that the Jefferson decision does not control the instant case. We readily admit the added and greater reason for denying recovery where the injury is service-caused (the Jefferson case) than where the injury is not service-caused (the present case).

It is easy to conjure up the unfortunate results, including the subversion of military discipline, if soldiers could sue the United States for injuries incurred by reason of their being in the armed service of their country.

If soldiers could sue for such injuries as illness based on the alleged negligence of the company cook or mess sergeant, or if soldiers who contract sickness on wintry sentry duty had a right of action against the Government on the allegation of a negligent order given by the company commander, then the traditional grousing of the American soldier would result in the devastation of military discipline and morale. However, as we read his opinion, the cogent and powerful reasoning of Judge Chesnut is applicable to soldiers regardless of whether or not the injury is service-caused.

And the Federal Tort Claims Act, as we interpret it, either excludes (subject, of course, to the express exceptions) soldiers altogether or completely includes them. We are quite unable to find in the Act anything which would justify us in holding that Congress intended to include death of, or injury to, a soldier, which was not service-caused (the instant case) and to exclude service-caused injury or death (the Jefferson case). Our attention is called to the faot that in an early draft of the Federal Tort Claims Act (H.

R. 181, introduced by Mr, Celler) there was an express exception with reference to soldiers, and the Act was finally enacted without this exception. The argument is made that when Congress, with this exception brought to its attention, deliberately omitted this exception from the final draft of the Act, it must fairly be inferred that Congress clearly intended to include soldiers within the scope of the Act. This omitted exception (H.

R. 181, section 402(8) reads as follows: “Any claim for which compensation is provided by the Federal Employees’ Compensation Act, as amended, or by the World War Veterans' Act of 1924.” (Italics ours.) Thus a careful reading of this

section shows that it did not exclude soldiers as a class from the benefits of the Act. It merely excepted (in addition to claims under the Federal Employees’ Compensation ■Act, 5 U.S.C.A. § 751 et seq.) “Any claim for which compensation is provided * * * by the World War Veterans’ Act of 1924 [38 U.S.C.A. § 421 et seq.],”— that is, merely and solely claims compensable under a single Act of Congress, the World War Veterans’ Act of 1924. It is certainly arguable that Congress, when this exception was finally considered and rejected, must have been familiar with the Dobson and Bradey cases.

If so, and Congress did intend to include soldiers within the scope of the Act, every dictate of common sense would seem to require that Congress would manifest this intention not by inference or implication but, on so important a matter, by emphatic positive expression to that effect, in words so clear that they could readily be understood, even by federal judges. So radical a departure from previous policy and thought should certainly have been expressly stated and not left to inference.

It might well have been, too, that Congress, aware of the considerations advanced in this opinion thought (as we do) that the Act, in its final form, did not apply to soldiers. Judge Chesnut, in his opinion in the Jefferson case, D.C., 77 F.Supp. at page 712, stated: “The problem here is made more difficult by reason of the .fact, as noted .in the previous opinion in this case, that

section 421 of the Act, 28 U.S.C.A. § 943, contains numerous types of claims which are excepted from the coverage of the Act, none of which, however, include the instant situation, although in a prior proposed Act for the same general purpose, there was included such an exception. Nevertheless, as previously stated, I reach ¡the conclusion that the implied exception does exist in this case.” (Italics ours.) Again, at D.C., 77 F.Supp. page 713, Judge Chesnut, in referring to “Senate Report No. 1400, and also in the House ■Committee Report of July 22, 1946” said: “And again in commenting on the stated exceptions to the Act appearing in.

section 421, it was said that the exceptions include ‘claims which relate to 'certain governmental activities which should be free from threat of damage suits, or for which adequate remedies are already available.’ ” And we quote another statement from his opinion, Jefferson v.

United States, 77 F.Supp. at page 714: “The case strongly emphasizes the particular nature of government-soldier relationship and this furnishes strong support for the view that it was not the intention of Congress in passing the Tort Claims Act to include in the phrase ‘any ■claim’ -those -by former soldiers for service-connected disabilities for which there was already existing a large body of federal legislation. “Again it may be noted that

section 410(

a) also provides with respect to the test of liability as follows: ‘Subject to the provisions of this title, the United States shall be liable in respect of such claims, to the same claimants, in the same manner, and to the same extent, as a private individual under like circumstances’. “This phraseology is seemingly inept if it 'had been the intention of Congress to give soldiers additional redress for service-connected disabilities.

It is hardly conceivable to analogize the liability of the United States to that of a private individual in respect to service-connected disabilities in view of the government-soldier particular relationship.” For the reasons advanced in this opinion, we think the Federal Tort Claims Act does not apply to claims by soldiers in the United States Army, even when those claims arise out of injuries or death which, as here, are not service-caused. Both of the judgments in favor of the plaintiffs-appellees in the District Court must, therefore, be reversed. Reversed.